Ciolino v. Simon ( 2021 )

2020 IL App (1st) 190181No. 1-19-0181
FIRST DIVISION
March 16, 2020
PAUL J. CIOLINO, ) Appeal from the Circuit Court of
) Cook County
Plaintiff-Appellant, )
)
v. )
)
ALSTORY SIMON, JAMES DeLORTO, TERRY ) No. 18 L 0044
A. EKL, JAMES G. SOTOS, MARTIN PRIEB )
WILLIAM B. CRAWFORD, ANITA ALVAREZ, )
ANDREW HALE, and WHOLE TRUTH FILMS, )
LLC, )
) Honorable Christopher E. Lawler
Defendants-Appellees, ) Judge Presiding
PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
Justices Pierce and Walker concurred in the judgment and opinion.
OPINION
¶1 This case stems from one of the most famous murder cases in the recent history of our
state. The background of the case is gripping. It is no real surprise then that the events surrounding
the case have spurred a movie, a book, and other media attention. But that media attention is the
reason the parties are before the court today.
¶2 Plaintiff Paul Ciolino is suing several defendants for defamation and other causes of action
for the statements they made about his alleged involvement in framing a supposedly innocent man
for murder. The allegedly defamatory statements attributed to defendants are found in a book and
the movie it inspired. Despite that the case reads like a movie script, there has been no fairytale
ending for anyone involved.
No. 1-19-0181
¶3 The subject of the appeal is a bit less engrossing than the overall subject matter of the case.
Here we are called to decide whether Ciolino’s claims arising from the publication of the allegedly
defamatory statements are barred by the statute of limitations. We hold that the claims against one
defendant are time barred, but that the remainder of the claims are not. Accordingly, we affirm in
part, reverse in part, and remand for further proceedings.
¶4 I. BACKGROUND
¶5 In 1982, Jerry Hillard and Marilyn Green were murdered in Washington Park in Chicago.
Anthony Porter was convicted for the murders and was sentenced to the death penalty. Professor
David Protess and other members of Northwestern University’s Innocence Project took an interest
in the case. Members of the Innocence Project reviewed evidence gathered by Porter’s defense
attorney during the case and they identified that another man, defendant Alstory Simon, was in the
area of the murders close to the time that they were committed. The Innocence Project began to
collect and evaluate evidence and, at some point, came to believe that Simon committed the
murders, not Porter.
¶6 Plaintiff Paul Ciolino was employed as a private investigator and did work for the
Innocence Project. Ciolino and another Innocence Project investigator traveled to Milwaukee to
meet with Simon. Simon claims that Ciolino arrived at his home in Milwaukee, claiming to be a
police officer from Illinois. Ciolino was armed with a handgun. He allegedly informed Simon that
his team had developed evidence that pointed to Simon as the guilty party in the Washington Park
murders. Simon was a drug addict and he maintains that he was intoxicated at the time of Ciolino’s
visit.
¶7 Ciolino allegedly told Simon that he had secured sworn statements from Simon’s ex-wife
Inez Jackson, and from others in which they averred that Simon committed the murders. Ciolino
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showed Simon the statements. Ciolino also showed Simon a video that the Innocence Project had
made using a paid actor. The actor in the video stated that he was an eyewitness to the murders
and that he saw Simon kill Hillard and Green. Simon also viewed video of a news report in which
his ex-wife, Inez Jackson, claimed that she was with Simon when he committed the murders in
Washington Park. Simon maintains that Ciolino promised him that he would receive only a short
prison sentence if he confessed and that he would receive large sums of money from book and
movie deals because of the intense publicity of the case.
¶8 As the meeting progressed, Ciolino allegedly informed Simon that he and his colleague
were not actually police officers, but that they were members of the Innocence Project. Simon
claims that Ciolino then told him that Ciolino and Protess would secure a lawyer to represent him
in the murder case and that they would do whatever else was necessary to ensure that he would
receive no more than a couple years in jail if he confessed. Ciolino then allegedly informed Simon
that the police were imminently on their way from Chicago to arrest him, and that they were trying
to help him, but that the only way Simon could avoid the death penalty was to provide a videotaped
confession before the police arrived. Ciolino allegedly told Simon that confessing at that moment
was his one and only chance to help himself. Simon provided a videotaped confession.
¶9 Armed with Simon’s videotaped confession and the statements from Simon’s ex-wife and
her nephew, Walter Jackson, the Innocence Project undertook to free Porter from prison. After a
petition was filed and the proceedings progressed, Porter’s conviction was vacated. The Cook
County State’s Attorney simultaneously empaneled a grand jury that indicted Simon for the
murders.
¶ 10 Ciolino allegedly followed through on his promise to secure an attorney to represent
Simon. Simon, in fact, retained attorney Jack Rimland to represent him in the murder case. Jack
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Rimland was an attorney in Chicago that shared office space with Ciolino. Rimland purportedly
convinced Simon to plead guilty by telling Simon that he needed to make the deal in order to avoid
the death penalty or life in prison. Rimland, on Simon’s behalf, did not challenge the confession
that Simon gave to Ciolino nor did he present any other evidence to the court, including the
evidence that implicated Porter in the first place and led to his conviction.
¶ 11 Simon further claims that Rimland told him to apologize to the victims’ families in order
to make his confession seem legitimate. During the time Rimland was representing Simon,
Rimland maintained contact with his officemate Ciolino. For example, Rimland presented an
award to Ciolino and other Innocence Project members for the work they did to overturn Porter’s
conviction even though he was concurrently representing Simon in a case for the same murders.
¶ 12 Simon eventually did plead guilty to the murders. He was sentenced to 37 years in prison.
At his sentencing hearing, Simon apologized to the victims’ families. Simon continued to claim
responsibility for the murders in a televised news interview after his guilty plea. Simon also wrote
letters to several individuals, including to Anthony Porter, apologizing for committing the murders.
Nonetheless, many people did not believe that Simon was responsible for the crimes. Another
private investigator, defendant James DeLorto, who did not believe Simon’s confession and was
skeptical of the Innocence Project’s involvement, independently began to investigate Simon’s case
for the potential that he was innocent of the crimes.
¶ 13 Not surprisingly, the case generated significant publicity, including publicity generated by
Ciolino and other members of the Innocence Project giving interviews and making statements to
the press. Anthony Porter’s exoneration for the Washington Park murders led to Governor George
Ryan calling for a moratorium on the death penalty in Illinois.
¶ 14 Ciolino was interviewed on television following Simon’s conviction. Ciolino described
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the tactics he used in securing Simon’s confession. Ciolino acknowledged that he used a paid actor
to make a video who identified Simon as the shooter. Ciolino stated that, after Simon was
confronted with the video and other evidence, Simon just “gave up.” Ciolino stated that he and his
partner “just bull rushed [Simon] and mentally he couldn’t recover.” Ciolino stated that, as a
private investigator, “I don’t have any rules. The Supreme Court says I can lie, cheat, do anything
I want, to get him to say what I want him to say.” Also in that vein, Protess published a book in
which he explained how, on another occasion, Ciolino posed as Hollywood producer Jerry
Bruckheimer and offered a witness a movie deal in exchange for the witness to change testimony
he had previously given.
¶ 15 Simon filed a pro se petition for postconviction relief claiming that his confession to
Ciolino was involuntary and that he received ineffective assistance of counsel from Rimland. The
court denied Simon’s pro se petition.
¶ 16 Subsequently, defendants Terry Ekl and James Sotos undertook to represent Simon, and
they filed a successive postconviction petition on his behalf. In his successive petition, Simon
asserted an actual innocence claim and provided new evidence. The new evidence that Simon
provided in support of his petition was that two of the witnesses that had implicated Simon in the
murders, his ex-wife Inez Jackson and her nephew Walter Jackson, recanted their statements.
¶ 17 Inez Jackson and Walter Jackson explained that they had implicated Simon based on
promises from David Protess of the Innocence Project. Inez Jackson reportedly had serious drug
and alcohol problems and was allegedly given food, cash, alcohol, and other things of value by
Protess and his team. In an affidavit, Walter Jackson admitted that he provided false evidence
against Simon for money and for help with his own legal problems, and that he encouraged Inez
Jackson, his aunt, to also provide false testimony in order to help with his legal troubles. It was
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additionally brought to light for the first time in Simon’s successive postconviction proceedings
that Inez Jackson had provided a statement to the police when they were originally investigating
the murders in which she stated that she was with Simon the night of the murders and that he did
not commit them.
¶ 18 Some concerns were raised about the Innocence Project’s conduct in this case and in other
cases. After Northwestern University conducted a court-ordered internal investigation into the
controversial journalistic and investigative practices of the Innocence Project under Protess, he
was separated from the University. Once the controversial practices of the Innocence Project were
revealed, defendant Anita Alvarez, the Cook County State’s Attorney, agreed to revisit Simon’s
case. After a year-long investigation in which more than 100 witnesses were interviewed, the
State’s Attorney Office concluded that, in light of the unlawful investigative conduct by Ciolino
and Protess and the inadequate representation that Simon received, the case was so tainted and the
convictions so called into doubt, that Simon’s convictions could not stand. The State’s Attorney
Office moved to formally abandon all charges against Simon, and the circuit court granted the
motion and vacated Simon’s convictions. Simon was released from prison after serving 15 years.
¶ 19 At a news conference announcing the decision to drop the charges against Simon, Alvarez,
as State’s Attorney, stated that the “investigation by David Protess and his team involved a series
of alarming tactics that were not only coercive and absolutely unacceptable by law enforcement
standards, they were potentially in violation of Mr. Simon’s constitutionally protected rights.”
Alvarez continued, expressing that, in her view, “the original confession, made by Alstory Simon
and the coercive tactics that were employed by investigator Ciolino have tainted this case from the
outset and brought into doubt the credibility of many important factors.” She concluded that “[t]he
bottom line is that the investigation conducted by Protess and private investigator Ciolino, as well
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as the subsequent legal representation of Mr. Simon, were so flawed that it is clear that the
constitutional rights of Mr. Simon were not scrupulously protected as our law requires. This
conviction therefore cannot stand.”
¶ 20 Thereafter, Simon sought a certificate of innocence. The circuit court denied Simon’s
petition for a certificate of innocence under the statute governing such proceedings because the
statute requires the petitioner to prove, among other things, that the petitioner did not, by his own
conduct, voluntarily bring about his conviction. See 735 ILCS 5/2-702(g)(4) (West 2016). The
circuit court found that Simon had, in fact, brought about his own conviction by confessing and
by pleading guilty. However, the circuit court went further, finding that Simon “had certainly
satisfied his burden” of demonstrating his innocence by a preponderance of the evidence.
¶ 21 In explaining its finding that Simon had demonstrated his innocence, the circuit court stated
that it accepted Simon’s allegation that he had gone along with Protess and Ciolino’s plan to free
Porter and to frame himself. The circuit court further accepted that Simon had done so based upon
Ciolino’s promises that he would receive a short prison sentence and would receive large sums of
money when he was freed from prison with Protess’s assistance. The circuit court credited Simon’s
allegations that Ciolino had impersonated a police officer, that Simon was threatened with the
death penalty if he did not confess, and that Ciolino promised Simon money from book and movie
deals and a short prison sentence if he confessed. In conclusion, the court noted, “it is more likely
true than not that [Simon] is actually innocent of the murders of Hillard and Green.”
¶ 22 On February 17, 2015, Simon filed a federal civil rights lawsuit for malicious prosecution
against Ciolino, Northwestern University, David Protess, and Jack Rimland. In his suit, Simon
sought damages for the parties’ respective roles in his allegedly wrongful conviction. The
allegations made in Simon’s federal suit are consistent with those set forth above.
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¶ 23 About three years before Simon was released from prison, in the Spring of 2011, defendant
William Crawford wrote a document he titled “Chimera” that set forth his narrative that Simon
was framed by the Innocence Project. “Chimera” was not officially published, but Crawford claims
that he uploaded a copy of it to the internet. Then, while Simon’s federal case against the Innocence
Project parties was ongoing, on June 9, 2015, Crawford published a book entitled Justice
Perverted: How the Innocence Project of Northwestern University’s Medill School of Journalism
Sent an Innocent Man to Prison. Justice Perverted has the same subject matter and has many
verbatim passages from “Chimera.” The book makes the case that Ciolino, Protess, and others
framed Simon for the Washington Park murders in order to secure the release of Porter who was
on death row. The book further makes the case that the Innocence Project had a more
Machiavellian motive for securing Porter’s release: to put an end to the death penalty in Illinois.
¶ 24 Crawford’s book, Justice Perverted, inspired a documentary film made by defendants
Andrew Hale and Whole Truth Films entitled “A Murder in the Park.” The documentary features
interviews and commentary from defendants Simon, Hale, Ekl, Sotos, Delorto, Crawford, and
Alvarez. The documentary has the same theme as Justice Perverted, and the film’s subjects claim
that Ciolino engaged in a variety of crimes to secure a false confession from Simon. Both the book
and the film track closely to the allegations made by Simon in his postconviction proceedings,
some of which have been found credible in the courts and some of which have been admitted by
Ciolino. The film’s thesis is that Protess and the Innocence Project wanted to end the death penalty
in Illinois and that they were willing to use any means to accomplish that objective—including
framing an innocent man for murder.
¶ 25 Ciolino has his own theory about the motives behind the individuals on the other side of
the dispute. Ciolino contends that the whole effort to free Simon was an undertaking aimed at
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discrediting the Innocence Project and the wider wrongful conviction movement as a whole. The
narrative Ciolino advances begins with defendant DeLorto. DeLorto has a law enforcement
background and has made negative statements about the work of Protess in the past. During the
course of his work as a private investigator, DeLorto worked with attorneys Ekl and Sotos. Ciolino
maintains that Ekl and Sotos undertook to represent Simon, with DeLorto as their investigator,
“with any eye toward using the case to discredit the Porter exoneration and smear David Protess
and Northwestern University.”
¶ 26 Ciolino contends that defendant Crawford became involved with DeLorto and with
Simon’s lawyers, Ekl and Sotos, and wrote Justice Perverted to disseminate their false narrative
that Simon was framed by the Innocence Project. Ciolino further contends that DeLorto and his
cohorts enlisted defendant Martin Preib to help them combat the wrongful conviction movement.
Preib began to author a blog entitled “Crooked City: The Blog About the Wrongful Conviction
Movement.” Ciolino claims that Prieb used the blog to circulate false and misleading narratives
about exonerations, including the Porter exoneration. It is Ciolino’s position that Crawford’s book,
Hale’s documentary, and Prieb’s blog were all conceived as part of a conspiracy to disrupt the
“innocence industry.”
¶ 27 Similarly, Ciolino contends that Anita Alvarez dismissed the charges against Simon
because she harbored resentment towards Protess and the Innocence Project because of her
supposed pro-law-enforcement leanings and because Protess had been critical of her in the past.
Ciolino opines that Alvarez had been nationally embarrassed in another case in which
Northwestern was involved and that Alvarez had become dead set on doing anything she could to
discredit Protess. Ciolino goes as far as to say that Alvarez “release[d] a murderer to settle a score.”
¶ 28 Defendants Hale and Whole Truth Film’s documentary “A Murder in the Park” premiered
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on November 17, 2014 at DOC NYC in New York. DOC NYC bills itself as “America’s largest
documentary film festival.” Several defendants in this case attended the film’s premiere, and,
around this time, several publications of varying renown wrote about the film’s premiere or the
film’s existence. “A Murder in the Park” was also shown at the Cleveland International Film
Festival which took place from March 24 to 26th in 2015.
¶ 29 On April 27, 2016, Ciolino filed a counterclaim in Simon’s federal case. Ciolino
countersued Simon, and he interposed claims against Alvarez, Hale, Ekl, Sotos, DeLorto, Prieb,
Crawford, and Whole Truth Films. Ciolino sought damages against the defendants therein for
defamation, false light, intentional infliction of emotional distress, and conspiracy. Ciolino’s
claims stemmed from the statements those defendants made in “A Murder in the Park” and Justice
Perverted. Ciolino contends that those publications advance “an outrageous and demonstrably
false claim” that Protess and Ciolino framed Simon, an innocent man, “so that death row inmate
Anthony Porter could become a ‘poster boy’ for the bid to end executions in Illinois.”
¶ 30 The federal district court dismissed Ciolino’s counterclaim on January 3, 2017. The district
court found that Ciolino’s counterclaim was not a compulsory counterclaim under the Federal
Rules of Civil Procedure (see Fed. R. Civ. Pro. 13(a) (West 2016)) and that the court did not have
supplemental jurisdiction over the counterclaim because the “counterclaim [did] not arise out of
the same transaction or occurrence as Simon’s malicious prosecution claim.” Simon v.
Northwestern University, No. 15-CV-1433, 2017 WL 25173, at *5 (N.D. Ill. Jan. 3, 2017). The
court noted that, even if it could exercise supplemental jurisdiction over the counterclaim, it would
decline to do so. Id.¶ 31 Subsequently, Simon reached a settlement for his malicious prosecution claim with
Northwestern University and Protess. Simon then voluntarily dismissed Ciolino as a defendant.
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¶ 32 A day less than a year after Ciolino’s counterclaim in Simon’s federal case was dismissed,
on January 2, 2018, Ciolino filed this case. Ciolino raises the same claims against the same parties
in this case as he did in his counterclaim in federal court. This case is, in substance, a refiling of
the counterclaim that was dismissed for lack of jurisdiction in federal court.
¶ 33 In this case, Count I of Ciolino’s complaint is for defamation against all defendants except
for Prieb. That count is really based upon all of the content and statements contained in “A Murder
in the Park.” Count II is for defamation against Crawford only. That count is based upon
Crawford’s book Justice Perverted and the statements he makes therein. Count III is for
defamation against Prieb only. That count is based upon the statements Prieb made on his blog
“Crooked City.” Count IV is for false light publicity against all defendants. Count V is for
intentional infliction of emotional distress against all defendants. And Count VI is for civil
conspiracy and seemingly alleges the involvement of all defendants.
¶ 34 Defendants all moved to dismiss the respective claims against them. The trial court granted
all the motions to dismiss, finding that the claims asserted by Ciolino are time barred. Ciolino filed
this appeal.
¶ 35 II. ANALYSIS
¶ 36 The circuit court granted all defendants’ motions to dismiss on the basis that the claims
Ciolino filed against them are barred by the statute of limitations. Defendants all brought their
motions to dismiss, at least in part, under section 2-619 of the Illinois Code of Civil Procedure
which provides for the involuntary dismissal of a claim based upon certain defects or defenses.
See 735 ILCS 5/2-619 (West 2016).
¶ 37 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. 735 ILCS
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5/2-619 (West 2016). The purpose of a section 2-619 motion to dismiss is to dispose of issues of
law and easily proved issues of fact at the outset of the litigation. Jones v. Brown-Marino, 2017 IL
App (1st) 152852, ¶ 20. Although a section 2-619 motion to dismiss admits the legal sufficiency
of a complaint, it raises defects, defenses, or some other affirmative matter appearing on the face
of the complaint or established by external submissions, that defeat the plaintiff’s claim. Ball v.
County of Cook, 385 Ill. App. 3d 103, 107 (2008). The failure to file a claim within an applicable
statute of limitations is one of the proper bases for dismissal under section 2-619. See 735 ILCS
5/2-619(a)(5) (West 2016). We review the trial court’s decision to grant a motion to dismiss de
novo. In re Marriage of Wojcik, 2018 IL App (1st) 170625, ¶ 17.
¶ 38 To begin, it is helpful to set forth the relevant dates that provide a roadmap for this appeal—
providing the ultimate criteria for determining whether the claims are time barred. The first
relevant date for purposes of the defamation case is Crawford’s completion of “Chimera.” That
document was completed in Spring 2011. “A Murder in the Park,” the documentary film at issue
in the case, premiered to an audience for the first time in New York on November 17, 2014. Justice
Perverted was published June 9, 2015. The relevant blog posts allegedly written by Prieb were
posted between June 2015 and April 2016. Ciolino’s federal court counterclaim was filed April
27, 2016 and dismissed on January 3, 2017. And Ciolino’s complaint in this case was filed January
2, 2018.
¶ 39 We note here that the operative filing date for Ciolino’s claims in this case is April 27,
2016. The reason that date is the operative date is because the Illinois Savings Statute is applicable.
The Illinois Savings Statute states that where an action is dismissed by a United States District
Court for lack of jurisdiction, then, regardless of whether the statute of limitations has run during
the pendency of the action, the plaintiff may commence a new action in state court within one year
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of the dismissal or within the remaining period of limitation, whichever is greater. 735 ILCS 5/13-
217 (West 2016); see also Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 105-06
(1996). Ciolino timely refiled his claims in state court within one year of the claims being
dismissed for lack of jurisdiction in federal court. So the question before us now is whether the
claims were timely filed when Ciolino filed them in federal court on April 27, 2016.
¶ 40 The main issue before us is whether defendants are entitled to dismissal on the basis that
“A Murder in the Park” premiered more than a year before Ciolino filed his claims in federal court.
For purposes of logical flow, however, we begin with Ciolino’s claims against Crawford for his
publication of Justice Perverted. We will then address the primary issue on appeal—whether the
defamation claims accrued when “A Murder in the Park” premiered or at any time thereafter but
more than a year before Ciolino filed suit. Then, because the claims against Alvarez require an
analysis separate from that required for the claims against the other defendants, we will turn to the
claims against her which relate to comments she made in a news conference that were re-aired in
“A Murder in the Park.” We will then address defendant Prieb’s arguments and all of the other
defendants’ alternative arguments regarding why we should affirm. Finally, we will move to the
propriety of the trial court’s dismissal of Ciolino’s claims for intentional infliction of emotional
distress and conspiracy.
¶ 41 A. Defamation and False Light
¶ 42 Ciolino’s principal claims are for defamation and false light publicity. In Illinois, the statute
of limitations for a claim for defamation is one year from the point that the cause of action accrued.
735 ILCS 5/13–201 (West 2016); Moore v. People for the Ethical Treatment of Animals, Inc., 402
Ill. App. 3d 62, 73 (2010). Generally, in defamation cases, the cause of action accrues, and the
statute of limitation begins to run, on the date the allegedly defamatory statement is published.
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Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 131-32
(1975). Similarly, an action for false light publicity has a one-year statute of limitations. 735 ILCS
5/13–201 (West 2016); Ludlow v. Northwestern University, 79 F. Supp. 3d 824, 841 (N.D. Ill.
2015). False light publicity claims accrue when the statements are made. Id.¶ 43 1. Crawford–Justice Perverted
¶ 44 “Chimera,” its full title apparently being “Chimera–A Story Based on the Public Record,”
was written and completed by William Crawford in Spring 2011. Subsequently, Crawford wrote a
full-length book on the subject titled Justice Perverted: How the Innocence Project at
Northwestern University’s Medill School of Journalism Sent an Innocent Man to Prison. Justice
Perverted that was published on June 9, 2015. Crawford maintains that most of the statements in
Justice Perverted that Ciolino alleges to be defamatory are verbatim statements from “Chimera”
and that only minor alterations have been made to those statements that are not exact reproductions.
Thus, Crawford argues, Spring 2011 should be the point at which Ciolino’s claims accrued for
defamation based on the allegedly defamatory statements in Justice Perverted because that is the
point at which the statements were published in “Chimera.”
¶ 45 For defamation claims, Illinois applies the “single publication rule.” The single publication
rule is that “[n]o person shall have more than one cause of action for damages for libel or slander
or invasion of privacy or any other tort founded upon any single publication or exhibition or
utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy actions are
complete at the time of the first publication, and any subsequent appearances or distributions of
copies of the original publication are of no consequence to the creation or existence of a cause of
action. Blair v. Nevada Landing Partnership, 369 Ill. App. 3d 318, 324-25 (2006).
¶ 46 Crawford points out that Ciolino’s own allegations in this case reveal that Crawford
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“circulated [“Chimera”] to virtually every media outlet in the city.” Crawford suggests that the
statements that Ciolino alleges to be defamatory were, thus, published to those news outlets when
Crawford was trying to have his story printed. We have held that any act by which a defamatory
matter is communicated to someone other than the person defamed is a “publication.” Missner v.
Clifford, 393 Ill. App. 3d 751, 763 (2009) (citing Restatement (Second) of Torts § 577, Cmt i, at
201-02 (1977)). On this basis, Crawford posits that the statements were “published” to those to
whom he circulated “Chimera” with the purpose of trying to obtain a wider circulation.
¶ 47 We reject Crawford’s assertion that the statements in “Chimera” were, as a matter of law,
published when he allegedly shopped his story to media outlets in the city. There is no evidence
that anyone at those news outlets even read “Chimera,” let alone that they read the specific
statements that Ciolino now claims are defamatory. Whether a publication has occurred at all is a
question for the jury. Missner, 393 Ill. App. 3d at 763 (citing Restatement (Second) of Torts § 617,
Cmt. a, at 315 (1977)). The only support for Crawford’s position that “Chimera” was seen by
anyone other than him is Ciolino’s allegation that Crawford attempted to have the story
disseminated by media outlets in the city. There is no evidentiary support from Crawford,
including even an affidavit from him, to support a finding that he published “Chimera” or any
individual statement therein to anyone.
¶ 48 The single publication rule simply does not apply here. The supposed republication in this
case is not really a republication at all, it was the statements’ actual publication. Because there is
a question regarding whether “Chimera” and the statements therein were ever “published,” the
allegedly defamatory statements in Justice Perverted cannot be deemed to be re-airings of any
previously published defamatory statements such that they might benefit from the single
publication rule. Crawford even acknowledges, as he must, the many differences between
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“Chimera” and Justice Perverted. Justice Perverted is far from a mere republication of “Chimera,”
it is a new, independent work. As far as the record in this case is currently constructed, there has
only been one publication of the allegedly defamatory statements in Justice Perverted, and that
publication occurred when Justice Perverted was published.
¶ 49 Crawford also states that he “placed [Chimera] on the internet” in 2011 when he completed
it. He argues that by putting “Chimera” on the internet in 2011 he published the statements therein
such that the statute of limitations for any claims related to those statements should have begun to
run in 2011. However, Crawford presented no evidence in support of his section 2-619 motion to
dismiss that he, in fact, posted “Chimera” to the internet in 2011. All we have is Crawford’s own,
unsworn assertion that he put the document on the internet: he does not detail where he posted it,
when it was posted, how it could be accessed or any other details about his supposed posting of
the document. At this stage, his unsupported assertions are insufficient to entitle him to dismissal.
Moreover, we do not even know if anyone read it. A communication of the allegedly defamatory
statement to a third party satisfies the publication requirement. Popko v. Continental Casualty Co.,
355 Ill. App. 3d 257, 264 (2005). But simply making a material available on some corner of the
internet does not mean that the material is “published” for purposes of a defamation claim.
Crawford’s argument on this point raises more questions than it answers—questions not suitably
resolved on a motion to dismiss.
¶ 50 2. Movie Premiere as Accrual Date
¶ 51 All defendants other than Prieb in some way argue that Ciolino’s claims against them
accrued when “A Murder in the Park” premiered at a film festival in New York. “A Murder in the
Park” premiered on November 17, 2014 at DOC NYC in New York. Defendants argue that Ciolino
was required to file claims arising from statements made in “A Murder in the Park” within one
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year of that film’s premiere such that his April 27, 2016 filing was untimely. Ciolino, meanwhile,
argues that he did not know, nor could he reasonably have known, about the film’s premiere in
New York. He argues that he had one year to file his claims relating to “A Murder in the Park”
after it premiered in Chicago on July 15, 2015, so his April 27, 2016 filing was timely.
¶ 52 As stated above, the statute of limitations for defamation and false light claims generally
accrues at the point that the statements are published. Moore, 402 Ill. App. 3d at 73. While we
have previously acknowledged that there is some uncertainty about what circumstances should
cause us to apply the discovery rule in defamation cases, we have explained that we will not
ordinarily apply the discovery rule in defamation cases unless the publication is hidden, inherently
undiscoverable, or inherently unknowable. Peal v. Lee, 403 Ill. App. 3d 197, 207 (2010); see also
Tirio v. Dalton, 2019 IL App (2d) 181019, ¶ 69. Defamation via mass-media publications,
including magazines, books, newspapers, radio and television programs are not subject to the
discovery rule because they are readily accessible to the general public. Tom Olesker, 61 Ill. 2d at
137.
¶ 53 DOC NYC, where “A Murder in the Park” premiered, bills itself as “America’s largest
documentary film festival.” Several articles were written in publications about the premiere of “A
Murder in the Park” near the time that the film premiered. For example, before or at the time the
film premiered, marketing and promotional materials for “A Murder in the Park” appeared on
social media and on the websites of the national publications Variety and Fox News. Several
articles mentioning the film were also posted on the websites of local publications. Christopher
Rech, the producer of “A Murder in the Park,” submitted a declaration in support of the motions
to dismiss stating that the film was not concealed from the public in any way and, in fact, the film
was actively marketed and advertised in order to maximize public interest in the film.
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¶ 54 Although Illinois courts have sometimes implied that the discovery rule does not apply to
defamation claims because the date of publication is the date that matters, it is clear that our
supreme court has not ascribed to such a bright-line rule. In fact, in the supreme court’s seminal
case on the issue, Tom Olesker, the court had “no hesitation” in applying the discovery rule to hold
that the plaintiff’s cause of action accrued when the plaintiff knew or should have known about
the existence of the allegedly defamatory material. Tom Olesker, 61 Ill. 2d at 136-37.
¶ 55 The Tom Olesker court distinguished the case before it from those in which the alleged
defamation was easily discoverable due to its mass media publication. Id. at 137. But when a
plaintiff does not know and cannot reasonably know about the existence of material defaming him,
the cause of action accrues at the time the plaintiff knows or should know that the defamatory
material exists. Id. at 136-37. The question before us is not whether the discovery rule can be
applied to a defamation claim, the question is whether, under the circumstances presented, the
nature of the publication was such that knowledge sufficient to trigger the statute of limitations
should be imputed to Ciolino because of the putative availability of the information.
¶ 56 The parties’ dispute, thus, turns on whether the premiere of “A Murder in the Park” in New
York, along with the attendant press coverage, was a sufficiently prominent medium that it could
be equated to a mass media publication that would proscribe the application of the discovery rule.
We find that, when construing the record in favor of Ciolino and viewing the circumstances in a
light most favorable to him, there is at least a question of fact regarding whether the film’s premiere
in New York was sufficient to start the limitations clock on his claims.
¶ 57 In Tom Olesker, the supreme court’s comment on when the discovery rule would not be
applicable for a defamation claim was for situations where “the publication has been for public
attention and knowledge and the person commented on, if only in his role as a member of the
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public, has had access to such published information.” Id. at 138. Apparently neither Ciolino nor
anyone other than those in the theater on November 17, 2014 had access to the allegedly
defamatory statements that were published that day, or at least that is an unresolved fact question.
The film and its specific content were not released to the general public in any way. Unlike mass
media publications, that are available for anyone to obtain at any time, the premiere of “A Murder
in the Park” was for a relatively small number of people at an event 800 miles away from the
allegedly defamed subject. The content of the film was undiscoverable to any unwitting member
of the general public at that time, including Ciolino. He could not have known that he was harmed
at that time.
¶ 58 Even in Winrod v. Time, Inc., 334 Ill. App. 59 (1948), on which defendants rely for support,
the court’s holding that the statute of limitations began running immediately upon publication was
based upon the fact that that the allegedly defamatory material was circulated to the general public
and was widely available. The Life magazine at issue in that case “appeared for sale on newsstands
throughout the country” with “thousands of copies widely distributed,” so the court held that the
statute of limitations began to run “upon the first publication, when the issue [went] into circulation
generally.” Id. at 61-64. But Winrod was still based on the fact that there was a “general release of
the magazine[,] completed throughout the nation.” Id. at 65; see also 54 C.J.S. Limitations of
Actions § 229 (“Where a cause of action is based upon a defamatory matter appearing in a
publication, the statute of limitations commences to run upon the first general distribution of the
publication to the public[.]”) (Emphasis added).
¶ 59 At this stage of the case, where all inferences must be drawn in his favor, Ciolino is situated
much more like the plaintiff in Tom Olesker than he is the plaintiff in Winrod. When we take
plaintiff’s allegations as true and view the evidence in a light most favorable to him, Ciolino can
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No. 1-19-0181
be more neatly analogized to the allegedly defamed plaintiff in Tom Olesker who did not and could
not have known about the publication of the material about him, than to the plaintiff in Winrod
who was allegedly defamed through the circulation of thousands of articles on a national stage.
The film in this case was not shown to the “general public” when it premiered as some defendants
suggest. It was shown to a small audience in one city and was available for a couple of hours.
¶ 60 Even the viewers of “A Murder in the Park” at the film festival in New York are more like
the subscribers at issue in Tom Olesker than they are like the general public in Winrod. Those who
saw “A Murder in the Park” at the film festival were a small, select group of people. The select
group of people is from another small subset of the population—attendees of the 2014 DOC NYC
film festival. According to Ciolino, if the film only showed that one time, he very likely would
have never learned of its existence.
¶ 61 As far as we can tell from the record, even if Ciolino wanted to see “A Murder in the Park”
before it premiered in Chicago, he would have had no reasonable way to do so. And that is among
the litany of factual issues that are currently unresolved. Defendants stressed during the oral
argument in this case that we should not even look to the discovery rule because the film was not
hidden and its existence was not inherently unknowable. Even in that context, however, factual
considerations may operate to preclude the dismissal of a plaintiff’s claim. See Mitsias v. I-Flow
Corp., 2011 IL App (1st) 101126, ¶¶ 29, 52 (a limitations period for a plaintiff’s cause of action
should generally not begin to run and expire at a time when the injury is unknowable); United
States v. Kubrick, 444 U.S. 111, 116 (1979) (where a plaintiff’s cause of action might be
undiscoverable through reasonable diligence, the limitations period may be tolled). All inferences
must be drawn in Ciolino’s favor at this stage of the case and defendants have not presented
evidence on all points to counteract the effect of those inferences.
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No. 1-19-0181
¶ 62 When we are dealing with the statute of limitations, if only one conclusion can be drawn
from the undisputed facts, the question of the timeliness of the plaintiff’s complaint is for the court
to decide, otherwise it is a question of fact. Heredia v. O’Brien, 2015 IL App (1st) 141952, ¶ 24.
We cannot say, as a matter of law, that the allegedly defamatory statements at issue here were
“easily discovered, and delivered to a mass sector of the public” (Blair, 369 Ill. App. 3d at 326)
nor that the circumstances are otherwise such that any claims arising from the allegedly defamatory
statements must have accrued immediately when the film was screened in New York. See Gadson
v. Among Friends Adult Day Care, Inc., 2015 IL App (1st) 141967, ¶ 14 (a section 2-619 motion
to dismiss seeks a summary disposition when a plaintiff’s claim is defeated as a matter of law or
on the basis of easily proven facts). And even though the existence of the film was not necessarily
hidden, there are questions about what Ciolino could have possibly discovered even if he was
completely diligent. The evidence currently in the record does not establish what Ciolino could
have known about the film and the specific statements therein or when he could have learned about
those matters or otherwise gained sufficient knowledge to take action on the claims asserted here.
¶ 63 We are aware of the fact that, after its premiere, “A Murder in the Park” was sold to
Showtime and has been broadcast nationally and become available on several nationwide
streaming services. A nationally available movie or television program is tantamount to the
nationwide circulation of a magazine like in Winrod and would undoubtedly cause the statute of
limitations to run. But Ciolino filed his claim within one year of “A Murder in the Park” having
any national run.
¶ 64 One of the stated reasons the supreme court had “no hesitation” in applying the discovery
rule in Tom Olesker was to prevent cases where plaintiffs were “silently wronged.” Tom Olesker,
61 Ill. 2d at 137. A ruling in favor of defendants here would promote silent wrongs in the future
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No. 1-19-0181
rather than preventing them. People would have to be timelessly devoted to searching out whether
anyone was spreading harmful untruths about them anywhere in the world. The statute of
limitations is supposed to compel plaintiffs to act reasonably to discover harms against them.
Statute of limitations jurisprudence revolves around the idea that when a person has sufficient
information or is deemed as a matter of law to have such information, then he must act. If a plaintiff
turns a blind eye to harms against him, he can lose his cause of action. If a plaintiff should discover
some harm against him, but does not, then he can lose his cause of action. But the statute of
limitations is not intended to serve as a refuge for defendants in instances in which a plaintiff does
not act solely because he does not and could not reasonably discover a harm against him.
¶ 65 We also must draw a distinction between the publicity defendants generated with an eye
towards drawing attention to the film itself on the one hand and the ability to know about the
allegedly defamatory statements therein on the other. In the cases where the mass media exception
has been recognized, it is because the allegedly defamatory statements themselves were on display
for all to view. Here, knowledge of the film’s existence is not the same as knowledge of the
statements therein. So even if defendants drew attention to the film itself to generate publicity and
viewership, that does not mean, as a matter of law, that Ciolino must be charged with knowledge
about the specific statements made about him in the film.
¶ 66 Courts have applied the discovery rule on a case-by-case basis, weighing the relative
hardships of applying the rule to both plaintiffs and defendants. Hermitage Corp. v. Contractors
Adjustment Co., 166 Ill. 2d 72, 78 (1995). As has been recognized repeatedly, the purpose of the
statute of limitations is to discourage the presentation of stale claims and to encourage diligence
in the bringing of actions. Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 265-66
(2001). At this point, there is no claim of any want of diligence on the part of the plaintiff in this
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No. 1-19-0181
case, nor is there any assertion that there are discernable increases in problems of proof so far as
defendants are concerned. See Tom Olesker, 61 Ill. 2d at 133. We think there would be a significant
hardship on plaintiffs if we were to enforce, as a matter of law, a duty to discover and sue for any
potentially defamatory statements made anywhere on earth within a year, regardless of the
plaintiff’s ability to learn about the statements. At least in this case, we see no similar significant
hardship on a defendant that might arise due to the passage of time.
¶ 67 When the record is construed in Ciolino’s favor, diligence was shown here. Ciolino filed
his claims within 19 months of the New York premiere and within 9 months of the Chicago
premiere. There is no indication that Ciolino was sitting on his rights. Ciolino filed these claims
two months after the documentary aired nationally on Showtime. In this case, the interests of
justice and the interest in preventing stale claims would not be furthered by barring Ciolino’s
claims on limitations grounds.
¶ 68 This case is also different than some of the cases discussed by the parties in which a court
was tasked with determining whether the statute of limitations accrues simply by virtue of the
allegedly defamatory statement being posted online. Here, only references to the film were made
online, on social media, and in the news articles that reference the premiere of the film. The articles
discuss the subject matter of the film to varying degrees, but none of the articles carry the specific
statements that Ciolino claims to be defamatory. The film itself and the allegedly defamatory
statements themselves were not available online or to the public generally until much later, by
which time plaintiff sued within one year. Accordingly, based on the record as it is currently
developed, we find that Ciolino’s claims for defamation did not, as a matter of law, accrue when
the film premiered in New York.
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¶ 69 3. Alvarez- Press Conference
¶ 70 Defendant Anita Alvarez argues that Ciolino’s claims against her are time barred because
they are based on comments that she made at a televised news conference on October 30, 2014.
Ciolino’s claim for defamation against Alvarez is for the inclusion of certain statements she made
at a press conference where the footage was reproduced in “A Murder in the Park.” However,
because the allegedly defamatory statements are simply a republication of publicized statements
that Alvarez made more than a year before Ciolino filed suit, we agree that the claims against
Alvarez are time barred.
¶ 71 The allegedly defamatory statements that Ciolino claims Alvarez made in “A Murder in
the Park” were simply clips from a news conference she held on October 30, 2014. The news
conference was widely reported upon in Chicago and nationally when it occurred. Alvarez did not
appear in “A Murder in the Park” to give any new commentary or make any other statements about
the case or about Ciolino.
¶ 72 At the news conference announcing the abandonment of charges against Simon, Alvarez
stated that the “investigation by David Protess and his team involved a series of alarming tactics
that were not only coercive and absolutely unacceptable by law enforcement standards, they were
potentially in violation of Mr. Simon’s constitutionally protected rights.” Alvarez continued,
expressing that, in her view, “the original confession, made by Alstory Simon and the coercive
tactics that were employed by investigator Ciolino have tainted this case from the outset and
brought into doubt the credibility of many important factors.” She concluded that “[t]he bottom
line is that the investigation conducted by Protess and private investigator Ciolino, as well as the
subsequent legal representation of Mr. Simon, were so flawed that it is clear that the constitutional
rights of Mr. Simon were not scrupulously protected as our law requires. This conviction therefore
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No. 1-19-0181
cannot stand.” The “A Murder in the Park” filmmakers included those clips in the film.
¶ 73 The press conference Alvarez held was reported upon by every major Chicago news
organization the day that it happened. It was also reported upon by national news organizations
such as the Associated Press, USA Today, and Reuters. Both local and national news articles about
the press conference quote Alvarez’s allegedly defamatory statements about Ciolino, at least in
part. The statements were made in Chicago. In fact, on the day of Alvarez’s news conference,
Ciolino released a statement in response. See, e.g., Sarahtr, In Stunning Reversal, Alstory Simon,
Convicted in Double Murder, Released from Custody, Chicago Sun-Times, October 30, 2014
(available at https://chicago.suntimes.com/2014/10/30/18422250/in-stunning-reversal-alstory-
simon-convicted-in-double-murder-released-from-custody (last visited Dec. 17, 2019)). In the
wake of the backlash of Simon’s release and the criticism of his work, Ciolino replied that he still
believed Porter was innocent. Ciolino stated that he stood by his work, explaining that “Mr. Simon
confessed to a Milwaukee TV reporter, his own lawyer and others since he confessed to me. You
explain that.” Ciolino also reiterated his belief that “[b]ut for the work we did together with
Northwestern and the students, Porter’s life would have been taken.”
¶ 74 Unlike the claims against Crawford for Justice Perverted, the claims based on comments
Alvarez made at the news conference are subject to the single publication rule. The single
publication rule is that “[n]o person shall have more than one cause of action for damages for libel
or slander or invasion of privacy or any other tort founded upon any single publication or exhibition
or utterance.” 740 ILCS 165/1 (West 2016). Under this rule, defamation and privacy actions are
complete at the time of the first publication, and any subsequent appearances or distributions of
copies of the original publication are of no consequence to the creation or existence of a cause of
action. Blair, 369 Ill. App. 3d at 324-25 (2006). Ciolino’s claims against Alvarez accrued on
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No. 1-19-0181
October 30, 2014 and the rebroadcast of video clips from the news conference in “A Murder in the
Park” cannot, as a matter of law, create a new cause of action.
¶ 75 It is obvious that Ciolino knew about Alvarez’s press conference and the statements made
therein. He responded to them directly in a publicly released statement the same day. Both local
and national news outlets reported on Ciolino’s statement. The fact that Alvarez’s statements were
later reproduced in “A Murder in the Park” is insufficient to give rise to a new cause of action.
Alvarez is not even the one who reproduced the statements. Therefore, because Alvarez’s allegedly
defamatory statements were made on October 30, 2014 and Ciolino knew about them that same
day, but did not file his claims against her until April 27, 2016, Ciolino’s claims against Alvarez
are time barred.
¶ 76 4. Prieb’s Arguments and Defendants’ Other Arguments for Dismissal
¶ 77 Defendant Martin Prieb does not rely on the statute of limitations to argue that we should
affirm the dismissal of the claims against him. Ciolino seeks to hold Prieb responsible for blog
posts that he made on the blog “Crooked City: The Blog About the Wrongful Conviction
Movement.” The statements that Prieb allegedly made on the blog for which Ciolino seeks to
recover were made between June 2015 and April 2016. Because Ciolino filed his claims in federal
court on April 27, 2016, there is no issue as to timeliness. So Prieb raises other arguments that he
contends entitle him to dismissal. The other defendants raise the same arguments as Prieb as
alternative bases for affirming the dismissal of Ciolino’s claims should we reject their position on
the statute of limitations.
¶ 78 Defendant Prieb and all of the other defendants argue that even if the claims against them
are not time barred, the dismissal of the claims should nonetheless be affirmed on other grounds.
The trial court ruled solely on the statute of limitations arguments the parties raised and, in its
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No. 1-19-0181
written order, did not analyze any of the other possible grounds for dismissal that the parties raised
then and now raise again here. Defendants point out that even though the trial court dismissed the
claims for one reason, we can affirm the dismissal of Ciolino’s claims for any basis in the record.
See Abramson v. Marderosian, 2018 IL App (1st) 180081, ¶ 40.
¶ 79 Defendants all argue in different ways that we should affirm the dismissal of Ciolino’s
claims against them because the allegedly defamatory statements constitute inactionable opinion.
Only statements capable of being proven true or false are actionable for defamation; opinions are
not. Moriarty v. Greene, 315 Ill. App. 3d 225, 233 (2000). Defendants contend that the statements
attributed to them that Ciolino alleges are defamatory are open to interpretation and merely
represent their opinions of Ciolino and his conduct.
¶ 80 Defendants all also argue that the allegedly defamatory statements are covered by the fair
reporting privilege. The fair report privilege protects a defendant from a defamation action when
the defendant reports information obtained from governmental and public proceedings on matters
of public interest. Harrison v. Chicago Sun-Times, Inc., 341 Ill. App. 3d 555, 572 (2003); see also
33A Ill. Law and Prac. Slander and Libel § 31. Defendants contend that their works are based on
court records and principally on Simon’s postconviction filings, such that they cannot be liable for
defamation for repeating the statements made therein.
¶ 81 While defendants are correct that we may affirm on any grounds present in the record, we
similarly may decline to search beyond the trial court’s analysis to find some basis for its decision.
Allstate Ins. Co. v. Davenport, 309 Ill. App. 3d 750, 756 (1999); Nolan v. Johns-Manville Asbestos
& Magnesia Materials Co., 74 Ill. App. 3d 778, 796 (1979). This case is an appropriate time for
us to exercise such restraint. Defendants acknowledge that the trial court made errors in its written
order, but they essentially ask that we step in and serve the trial court’s function. We decline to do
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No. 1-19-0181
so.
¶ 82 Even though some of the questions presented by defendants are questions of law that we
would review de novo on appeal, we remain a court of review. Defendants ask us to consider a
number of matters and pass upon them even though no lower court has considered or analyzed the
issues. There are a number of thorny issues raised in the parties’ arguments that the trial court did
not reach, but that defendants want us to reach.
¶ 83 For example, there are questions raised regarding whether defendants abused the fair
reporting privilege and, therefore, lost the benefit to claim it. For the fair reporting privilege to
apply, the statements must be a fair and accurate representation of the proceedings reported upon.
Missner, 393 Ill. App. 3d at 761. If not, the privilege does not apply. Id. Ciolino argues that “A
Murder in the Park” is not a fair and accurate representation of the proceedings and he points to
discrepancies he believes exist. The defendant-filmmakers, on the other hand, argue that their film
fairly describes the events as reported in police files and court records and, thus, their work is
protected. To make matters more complicated, the fair reporting privilege is a qualified one. Solaia
Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 585 (2006). It typically does not bar claims, it
simply enhances a plaintiff’s burden of proof in proving up a defamation action. Lykowski v.
Bergman, 299 Ill. App. 3d 157, 166 (1998).
¶ 84 There are also questions about whether particular statements are properly characterized as
fact or opinion and whether such statements can be innocently construed. The parties each
strenuously press their respective cases: Ciolino that he is seeking recovery for expressions of false
facts; and defendants that they were merely expressing their opinions or advocating for Simon.
There are several considerations courts must take into effect when determining whether statements
are factual and can therefore be evaluated for defamation or whether the statements are
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No. 1-19-0181
nonactionable opinions. Hopewell v. Vitullo, 299 Ill. App. 3d 513, 518-21 (1998); Brennan v.
Kadner, 351 Ill. App. 3d 963, 969-71 (2004).
¶ 85 The parties also raise questions about whether the statements can be considered “highly
offensive to a reasonable person” to support a claim for intentional infliction of emotional distress.
As this issue pertains to Prieb, the trial court’s ruling is inconsistent. At one point in its order, the
trial court finds that Ciolino pled sufficient facts to state a claim for intentional infliction of
emotional distress against Prieb. At another point, the trial court finds that Ciolino’s claim is
insufficient because his “statements thus do not rise to the required level of ‘extreme and
outrageous conduct.’” It is clear from the trial court’s ruling as a whole that it found the claims
against Prieb to be time barred. The trial court stated, in analyzing Prieb’s motion to dismiss, that
“[a]ny claims [against Prieb] based on statements published before January 2016 are thus time-
barred.” That ruling was in error.
¶ 86 The trial court is the appropriate forum for these issues to be hashed out for the first time.
Discovery may well shed light on these matters and provide the trial court or this court with a
better opportunity adjudicate these issues that are no doubt significantly important to the overall
resolution of the case. We express no opinion about the quality of defendants’ arguments or their
likelihood of success. The grounds for a favorable ruling that defendants raise including and in
addition to the statute of limitations may well entitle them to a judgment of no liability, and
defendants are entitled to raise these matters at a later stage in the proceedings. But this court is a
court of review and we decline to be the first tribunal to consider and rule upon these important
disputed issues.
¶ 87 B. Intentional Infliction of Emotional Distress
¶ 88 The trial court found that, under section 2-615, Ciolino pled sufficient facts to state a cause
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No. 1-19-0181
of action for intentional infliction of emotional distress against all defendants. The court denied
defendants’ motions to dismiss in that regard. The trial court held that the claims were nonetheless
barred by the two-year statute of limitations governing personal injury actions in Illinois (citing
Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278 (2003)).
¶ 89 As stated above (supra part II, section A, subsections 1 and 2), the claims against
defendants are not barred by the one-year statute of limitations governing defamation actions, so
they are similarly not barred by the two-year statute of limitations governing actions for intentional
infliction of emotional distress. Even if, as defendants argue, the statute of limitations for Ciolino’s
intentional infliction of emotional distress claims is one year as a derivative of his defamation
claims (citing Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 208-09 (1983)), the
claims are still timely.
¶ 90 The trial court apparently failed to apply the Savings Statute to Ciolino’s claims. The trial
court found that the operative filing date for these claims was in January 2018—when Ciolino filed
this case. But when Ciolino filed this case he was refiling the claims that were dismissed for lack
of jurisdiction in federal court. The Illinois Savings Statute states that where an action is dismissed
by a United States District Court for lack of jurisdiction, then, regardless of whether the statute of
limitations has run during the pendency of the action, the plaintiff may commence a new action in
state court within one year of the dismissal or within the remaining period of limitation, whichever
is greater. 735 ILCS 5/13-217 (West 2016); see also Bryson v. News America Publications, Inc.,
174 Ill. 2d 77, 105-06 (1996). For limitations purposes, the operative filing date for Ciolino’s
claims in this case is April 27, 2016—when Ciolino filed these claims in federal court.
¶ 91 Defendants also argue that Ciolino failed to plead the facts necessary to state a cause of
action for intentional infliction of emotional distress. But the trial court denied defendants’ motions
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No. 1-19-0181
under section 2-615. The trial court found that Ciolino had sufficiently stated facts to support his
cause of action. None of the defendants appeal that adverse ruling. Defendants again want us to go
far beyond the trial court’s order and to reach a variety of arguments for the first time on appeal.
We decline to do so.
¶ 92 As for Prieb, and as discussed above (supra ¶ 85), the trial court’s order is inconsistent.
The order states that Ciolino pled sufficient facts against Prieb to state a cause of action for
intentional infliction of emotional distress. That ruling implies that Ciolino sufficiently pled that
Prieb’s conduct was extreme and outrageous. To prevail on a claim of intentional infliction of
emotional distress, the plaintiff must prove the following three elements: (1) that the defendant's
conduct was truly extreme and outrageous, (2) that the defendant either intended that his conduct
would cause severe emotional distress or knew that there was a high probability that his conduct
would do so, and (3) that the defendant's conduct did in fact cause severe emotional distress.
Taliani v. Resurreccion, 2018 IL App (3d) 160327, ¶ 26. The trial court found, in denying the
section 2-615 part of defendants’ motions, that Ciolino had pled sufficient facts to support those
elements of the cause of action. The trial court then found that the alleged conduct did “not rise to
the required level of extreme and outrageous conduct.” The findings cannot be reconciled. The
trial court then went on to ultimately find the claims to be time barred. Any finding that the
allegations were not sufficient was not a stated basis for the trial court’s ruling and cannot serve
as a basis to affirm the dismissal of the claims against Prieb.
¶ 93 As for Alvarez, we conclude that Ciolino’s claims are time barred. The only conduct
Ciolino alleges that Alvarez engaged in that could subject her to liability is not actionable as an
independent claim. Ciolino’s other allegations regarding intentional infliction of emotional distress
refer to Alvarez’s official actions in dealing with Simon’s case. They do not relate to any action
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No. 1-19-0181
towards Ciolino. Accordingly, Ciolino has no claim against Alvarez for intentional infliction of
emotional distress.
¶ 94 Per the notice of appeal in this case, the only issue currently on appeal is whether the trial
court properly granted judgment to defendants under section 2-619. Ciolino’s notice of appeal
states that “Plaintiff respectfully requests that the reviewing court reverse the Court’s order
dismissing Plaintiff’s complaint pursuant to 2-619.” Thus, we do not revisit the trial court’s rulings
on the section 2-615 portions of defendants’ motions. The trial court erred when it dismissed
Ciolino’s claim for intentional infliction of emotional distress as time barred.
¶ 95 C. Conspiracy
¶ 96 Defendants argue that Ciolino abandoned his conspiracy claim by failing to argue about
the propriety of the dismissal of that claim on appeal. At first impression, defendants’ position
seems persuasive—that the trial court’s dismissal of plaintiff’s claim for conspiracy should stand
because Ciolino forfeited that claim by failing to argue on appeal that its dismissal was improper.
However, Ciolino has persuaded us that he did, in fact, dispute the dismissal of his conspiracy
claim on appeal. Ciolino has not abandoned his claim sounding in conspiracy and, accordingly,
we reinstate his conspiracy claim so that he may pursue it on remand.
¶ 97 The trial court dismissed Ciolino’s claim for conspiracy on the basis that the underlying
torts supporting the alleged conspiracy were time barred, so the conspiracy claim was time barred
too (citing Mauvdis-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶¶ 109-11). As we have explained
above, defendants did not prove that the tort claims underlying the alleged conspiracy were time
barred, so the trial court’s justification for dismissing the conspiracy claim is not valid.
¶ 98 On appeal, plaintiff argued that all of his claims were dismissed improperly. Plaintiff
argued in his opening brief, and thoroughly in his reply brief, that his conspiracy claim was
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No. 1-19-0181
timely—counter to the trial court finding otherwise. Specifically, plaintiff stated that “Because
Plaintiff’s defamation, false light, and IIED claims are timely (as we have found above) and
adequately pled, Plaintiff’s civil conspiracy claim survives summary dismissal.” Now finding that
plaintiff did not abandon his claim for conspiracy, we reverse the trial court’s dismissal of
plaintiff’s conspiracy count as well as it was not time barred.
¶ 99 CONCLUSION
¶ 100 Accordingly, we affirm in part and reverse in part. We affirm the trial court’s dismissal as
to defendant Anita Alvarez. We reverse all the trial court’s other rulings on the motions to dismiss,
reinstate all claims against the other defendants, and remand the case for further proceedings not
inconsistent with this opinion.
¶ 101 Affirmed in part, reversed in part, remanded.
33